Arbitration and Award. and upon due examination of the proofs and allegations of the parties, it satisfactorily appears to us that the said Y. Z. is guilty of the premises so charged against him as aforesaid. Now, THEREFORE, we do hereby discharge the said C. B. from the service of the said Y. Z., any thing in his indentures of apprenticeship as aforesaid to the contrary notwithstanding. GIVEN [etc., as in Form 210]. CHAPTER VII. ARBITRATION AND AWARD. IN general, any controversy which might be the subject of a civil action, may be submitted to arbitration. If an action is already pending, the arbitration effects a discontinuance of it, unless it is otherwise stipulated by the parties. An agreement to arbitrate is usually, though not necessarily, in writing. When in writing, it is frequently in the form of mutual bonds. If not in that form, it is prudent to make two counterparts of the instrument, one for each party. It is usual to appoint one, two, or three arbitrators, and, if more than one, to provide against the contingency of their not being able to agree. This may be done by empowering them, in such case, to call in another person, chosen by themselves, to act with them; but the better practice is to empower them to choose an umpire, who shall act instead of them, if they fail to agree. The agreement of submission, in whatever form it is made, should state explicitly what powers are intended to be conferred on the arbitrators or umpire, either by referring all controversies without limit, or by distinctly limiting the particular controversies intended. If it is intended that the arbitrators may require either party to pay the expenses incurred by the other in the arbitration, the agreement should expressly empower them to award payment of expenses. But without this, the arbitrators are entitled by custom to require the prevailing party to pay them the same fees which are allowed to referees in courts of record, usually three dollars per diem. A different rate of compensation may be fixed by agreement of those concerned. All the arbitrators and all the parties must have reasonable notice of the time and place of the hearing. The more convenient practice is to apply to the arbitrators to appoint a time and place, and give written notice to the parties. If several arbitrators are appointed, an award must be made by all, unless it is otherwise provided in the submission. If it is provided that all or any two of them may make an award, they must all have due notice to attend the meeting, and of the subject of reference, otherwise the award will not be binding; but if, after notice, one of the arbitrators should omit to attend, the two who do attend may make an award. If, after due notice, either party neglects to attend, the arbitrators may proceed ex parte. In settling their award, the arbitrators must confine themselves strictly within the powers conferred by the submission. The precise controversy submitted to them should be determined; and if the award embraces matters not included in the submission it is void, unless the portion which exceeds the submission can be separated from the rest, without affecting the merits of the award as to that which was submitted. General Principles. The matters awarded should be expressed in clear and distinct terms, s that nothing shall be left uncertain. Thus if a party is required to give security, the nature and extent of the security must be stated, otherwise it would not appear what would amount to a performance of such requirement. In reference, however, to matters of calculation, or of definite facts, ascertainable to a legal certainty, it is enough if the award give the data or conditions from which the result may be deduced. The matters awarded must also be mutual, affecting both parties; and final, so as to terminate the controversy. If the submission requires it, the award must be sealed as well as signed; otherwise, sealing is not necessary, even where the submission is sealed. If the submission contemplates being delivered to the parties, it should be executed in duplicate, so that each party may have an original. Statutory Arbitration.-In many of the States, the proceeding is regulated by statute, with provisions that the award may be brought into court and a judgment entered thereon. In NEW YORK and some other States, it is held that the statute does not take away or affect the common-law proceeding; so that in such States an arbitration may be good for the purpose of establishing a valid award on which the successful party may sue if necessary, although it do not conform to the statute, and therefore do not entitle the party to a summary judgment without suit. In other States, the statute method is exclusive, and its regulations are held to apply to all arbitrations. The statute of NEW YORK provides that for the purpose of an award on which judgment may be entered, all persons, except infants and married women, and persons of unsound mind, may, by an instrument in writing, submit to the decision of one or more arbitrators any controversy existing between them, which might be the subject of a suit at law or in equity; including any claim to an interest in real estate, for a term of years or less, and any controversy respecting partition between joint tenants, or tenants in common, or concerning boundaries, or the admeasurement of dower, but excluding claims to real estate, in fee or for life. The agreement must stipulate that judgment may be entered on the award, if a proceeding under the statute is intended. The forms given below for the statute arbitration are according to the practice prescribed by the New York statute, and will be found sufficient in most of the other States. In some of the States the award, when ready, is delivered to the court by the arbitrators, and the matter called up as a cause in its order on the docket. 219. Special submission ;-controversy between several persons on each side.. 98 220. The same, of controversy as to wages.. 98 221. The same, of controversy as to an account.. 98 222. The same, of controversy as to breach of warranty.. 99 228. The same, concerning the settlement of partnership affairs.. 99 224. The same, of controversy as to annuity in lieu of dower.. 99 99 226. The same, concerning boundaries... 100 227. Arbitration bond........................ 100 228. The same, where appointment of an umpire is contemplated....... 100 229. Agreement of submission or bond, where the arbitrators are to be sworn 280. Submission without discontinuing a pending suit.. 101 101 101 Arbitration at Common Law. 232. Notice of hearing for adverse party.... 238. Oath of witnesses... 234. Agreement to extend the time for making award.. 235. Revocation of arbitrator's powers..... 236. Notice of revocation to adverse party.. 237. Appointment of umpire after disagreement of arbitrators.. 238. The same, before the hearing............ 239. Award by one or more arbitrators.. 240. Award by umpire..... 241. Award;-for payment of money in full... for assignment of a mortgage..... ..... 105 105 248. 66 249. for specific performance of agreement to assign a lease... 105 for specific performance of contract to convey land...... 105 250. Provision for the discontinuance of all suits.. 105 II. ARBITRATION UNDER THE STATUTE. 254. Submission...... 255. Oath of arbitrators.. 256. Oath of applicant for subpœna.. 257. Subpoena to appear before arbitrators... 258. Affidavit to the submission by the subscribing witness. 259. Affidavit to the award by the subscribing witness... 260. The same, by the arbitrators.. 261. Proof of service of award.. 262. Notice of application for judgment.. 263. Order confirming award.. 264. Judgment on award.... I. ARBITRATION AT COMMON LAW. 216. General Form of Agreement of Submission. and Y. Z., of 106 107 107 107 107 108 108 108 109 109 109 WHEREAS Controversies exist, and for a long time have existed, between us, A. B., of in relation to divers subjects: Now, THEREFORE, we, the undersigned A. B. and Y. Z., do hereby mutually covenant and agree, to and with each other, to submit all and all manner of actions, cause and causes of actions, suits, controversies, claims and demands whatsoever, now pending, existing, or † held by and between us, § to M. N., of as arbitrator, who shall [or, to M. N., O. P., and Q. R., all of as arbitrators, who, or any two of whom, shall] arbitrate, award, order, judge, and determine of and concerning the same. [Here insert, if desired, With power to award the payment of the costs [and of the expenses] incurred in such arbitration.] AND we do mutually covenant and agree to and with each other that the award to be made by the said arbitrator [or, arbitrators, or any two of them] shall, in all things, by us and Submissions. each of us, and by the(a) executors, administrators, and assigns of us and each of us, be well and faithfully kept, observed, and performed. Provided, however, that such award be made in writing, under the hand of the said arbitrator [or, hands of the said arbitrators, or any two of them], ready to be delivered to us, or either of us, on or before the day of 18. WITNESS Our hands and seals, this In presence of [Witness's signature.] 217. The Same, with Agreement for an Umpire. [As in Form No. 216, to the §; continuing thus:] to M. N., O. P., and O. R., all of , as arbitrators, who shall arbitrate, award, order, judge, and determine of and concerning the same. [Here insert, if desired, with power to award the payment of the costs [and of the expenses] incurred in such arbitration.] AND we do mutually covenant and agree to and with each other, that the award to be made by the said arbitrators shall in all things by us and each of us, and by the(a) executors, administrators, and assigns of us and each of us, be well and faithfully kept, observed, and performed. Provided, however, that such award be made in writing, under the hands of the said arbitrators, ready to be delivered to us, or either of us, on or before the day of 18. AND provided that, in case the said arbitrators do not so make their award(b) on or before said day, the questions above mentioned shall be, and are hereby, submitted to the decision of such third person as shall be then, or shall theretofore(c) have been, appointed [in writing(d)] by said arbitrators to act in such case as (a) Here insert "heirs," if the award may affect interests in real property-e. g., where a question of boundary or of appraisal of lands to be taken for public use is submitted, as in Roberts v. McNeil, 12 Wend., 578; Wood v. Auburn and Rochester R. R. Co., 8 N. Y. (4 Seld.), 160. (b) Under this phraseology in the submission, it will not be necessary to the validity of an award by an umpire that the arbitrators should have entered upon the trial of the controversy submitted. It will be sufficient that they agreed in appointing the umpire, and that the day named for delivering their award passed without their having agreed upon and made one. Thus, when the submission was, that if the arbitrators should not make an award within the time limited the umpire should act, it was held, that the omission of the arbitrators to act was sufficient, without showing any disagreement. McKinstry. Solomons, 2 Johns., 57; affirmed, 13 ib., 27. So, when the agreement was, to have the controversy determined "by two appraisers, or by an umpire to be appointed by such appraisers to decide between them in case of their disagreement;" and the appraisers, without attempting to determine the question, appointed an umpire, it was held that he had power to hear it, in the first instance, and his award was good. Butler v. Mayor, etc., of New York, 1 Hill, 489; and 1 Barb., 825. (c) Arbitrators may nominate an umpire before they proceed to the consideration of the subject; and this is the fairest way of choosing. Van Cortlandt v. Underhill, 17 Johns., 405; Butler v. Mayor, etc., of New York, 1 Hill, 499; and 1 Barb., 825. (d) The appointment of an umpire need not be in writing, unless required by the submission. If the words, "in writing," in the above form, are omitted, the arbi Submissions to Arbitration. umpire; and the award so made and ready to be delivered by said umpire, on or before the day of shall be valid and binding upon each of us, and the (a) executors, administrators, and assigns of each of us, in like manner as if it had been made by the arbitrators above named in person. as ar The undersigned hereby mutually agree to submit all their matters in difference, of every name and kind, to the determination and award of M. N. of as arbitrator [or, to M. N., O. P., and Q. R., all of bitrators], the said arbitrator [or, arbitrators, or, any two of them] to hear and determine the same [and insert, if desired, and award the payment of the costs [and expenses] incurred in such arbitration], and make their award in writing, on or before the 18. WITNESS Our hands, this In presence of day of -[Witness's signature.] 219. Special Submission;— Controversy between Several Persons on Either Side.(f) [As in Form 216, insertiny, instead of the words, "held by and between us," at the ↑, these words: held jointly, by and between the said A. B. and C. D. of the one part, and the said W. X. and Y. Z. of the other part. 220. Special Submission;-Controversy as to Wages. WHEREAS a controversy exists between us, A. B. and Y. Z., both of in relation to the wages due to Y. Z. from A. B., for services heretofore rendered by Y. Z. to A. B., as clerk [or, as foreman, or, as journeyman, or, as laborer.] Now, therefore, we, the undersigned A. B. and Y. Z. aforesaid, do hereby mutually covenant and agree, to and with each other, to submit the controversy to [proceed as in Form No. 216, from the §; or, if an umpire is to be appointed, follow Form 217.] 221. Special Submission;— Controversy as to an Account. WHEREAS, in respect to the account between the parties hereto, a copy of which is hereto annexed, a controversy has arisen as to whether A. B. ever delivered the flour therein mentioned, or any part thereof, to Y. Z., and if so, with what price or value Y. Z. is chargeable therefor, and as to what trators can make the appointment by parol. Elmendorf v. Harris, 5 Wend., 516; S. C., 23 Wend., 628. (e) This form is only recommended for cases in which the matters in controversy are regarded as of slight importance; or where entire mutual confidence is felt that there will be accord in the adjustment of matters of detail arising in the course of the proceeding. (f) In such a case, unless the submission be expressly confined to joint demands, it will include individual demands also. Fidler v. Cooper, 19 Wend., 285. |